MDLs to Watch: Dicamba Herbicide Litigation

Anjelica Cappellino, J.D.

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— Updated on June 23, 2020

MDLs to Watch: Dicamba Herbicide Litigation

An emergent class action suit against the agrichemical giant, Monsanto, has recently been centralized in the United States Judicial Panel on Multidistrict Litigation. A growing number of lawsuits have been filed against Monsanto by farmers and other chemical manufacturers in connection with crop damage caused by a type of herbicide referred to as dicamba. The lawsuits all share common allegations that dicamba “moves offsite” resulting in damage to neighboring crop yields. Plaintiff farmers in more than twenty states are claiming significant losses in their crop growth. These farmers allege that the herbicide harms crops that are not genetically modified to withstand such exposure. With lawsuits pending across twenty-one states and a recent centralization of the suits’ pretrial proceedings, the dicamba herbicide litigation is a critical products liability case that can affect a large portion of the agriculture system.

The Class Action Allegations

Dicamba is considered a powerful herbicide not fit for “on-crop” use, which involves applying the chemical to crops emerging from the ground. Due to its volatile nature, farmers could only use the herbicide during certain times of the year. Dicamba was not approved for on-crop use until late 2016, after Monsanto and another chemical company, BASF Corporation, developed new formulations of the herbicide, such as XtendiMax and Engenia, that were ostensibly less damaging. In conjunction, the manufacturers also developed corresponding seeds that would be resistant to harm from its dicamba-based weed killers. The dicamba crop system – the herbicide and its corresponding seeds tolerant to the chemical – were marketed for in-crop, and over-the-top use for the first time year. The new dicamba formulations resulted in a drastic increase of use on crops. However, according to the class action lawsuits filed on behalf of the affected farmers, the herbicide also spread to nearby crops, specifically soy, which were intolerant to the chemical.

One class action suit filed in the United States District Court of Kansas alleged that the manufacturers, Monsanto and BASF, “jointly collaborated to develop and release a defective and unreasonably dangerous ‘dicamba-tolerant crop system,’ which has directly resulted in massive harm to crops in Kansas, Arkansas, Missouri, Tennessee, Mississippi, and other states.” The lawsuit alleges the system caused crop, damage, yield loss, total crop failure, and financial ruin to the plaintiff farmers. It further alleges that the herbicide cannot be safely used for its intended purpose without causing harm to nearby crops and farmers who did not purchase the dicamba-tolerant seeds.

Another lawsuit in the Southeast Division of the Eastern District of Missouri alleges similar crop damages. Plaintiff Bader Farms, a peach business in Dunklin County, Missouri, filed suit against Monsanto after Bader Farms’ peach orchards were damaged by dicamba drift. Plaintiffs argue that Monsanto wrongfully released two varieties of genetically modified seeds before the corresponding dicamba-based herbicides were available, leading to the illegal use of dicamba by surrounding farmers which resulted in damages to Bader Farms’ crops. Plaintiffs further allege that Monsanto rushed to release the system and purposely concealed information regarding the volatility of the chemical from the regulatory authorities.

Multidistrict Litigation Centralization

As a result of the growing number of class action lawsuits against Monsanto and BASF’s dicamba formulations and dicamba-tolerant crop system, the matters were centralized into a multidistrict litigation. Last month, the United States Judicial Panel on Multidistrict Litigation centralized nine actions in the Eastern District of Missouri, finding that the actions involve commons questions of fact “arising from allegation concerning the development, testing, and marketing of Monsanto’s dicamba-resistant Xtend seeds and three dicamba herbicides – XtendiMax, Engenia, and FeXapan – as well as allegations of injury from the use of those herbicides, either alone or in conjunction with the Xtend seeds.” The panel found that transfer will serve the convenience of the parties and witnesses while promoting the just and efficient conduct of litigation.

Although all defendants opposed centralization, defendants Monsanto, DuPont de Nemours and Company, and Pioneer Hi-Bred International all favored the Eastern District of Missouri as a transferee district. The Bader Farms plaintiffs also opposed centralization due to its advanced status of litigation. However, the panel held that centralization will prevent duplicative discovery, inconsistent class certification rulings, and other pretrial matters while conserving judicial and party resources. The panel notes that “discovery concerning the development, testing, marketing, and regulatory histories of the herbicides and seed products – including expert discovery on such matters as the chemical composition of the herbicides and the mechanism of injury – appears likely to be extensive.” The Eastern District of Missouri was chosen as the transferee district because four of the actions, as well as one tag-along, are pending in that district, Monsanto is headquartered there, and various relevant activities also took place there.

How Can the Experts Weigh In?

Like any product liability case, one of the major questions is whether the defendants manufactured a herbicide that was unreasonably dangerous. Agriculturalists and weed specialists on both sides will likely play a key role in the litigation. The standard of care when using dicamba herbicides can also be established by experts. The U.S. Environmental Protection Agency has started mandating special training for dicamba users and requiring farmers to keep records establishing compliance with the chemical’s label instructions. On the plaintiff’s side, an expert would need to establish, as the class action complaints state, that it is impossible for the herbicide to be safely used.

According to University of Missouri data, approximately 4% of the 90 million acres of soybeans planted this year have shown signs of damage linked to dicamba. As such, this litigation will likely affect a large portion of the agricultural industry.

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